Protecting intellectual property during trade secret litigation

A company's intangible assets can be protected in a number of ways. Its first line of defense, though, is usually found in trademark, copyright or patent law. However, the judicious application of trade secret law is another preventative measure against the theft of intellectual assets. Yet what is less intuitive but extremely prevalent are situations where plaintiff Yet when a corporations sues over trade secret misappropriation, the greatest irony of the case is that taking legal action may put it in the position to gain access to the defendant corporation's trade secrets. How does this happen? During the discovery phase of litigation, the plaintiff's attorney requests the defendant corporation's documents. If the judge grants the request, the defendant's secrets might be exposed to the plaintiff. That said there are a number of things a company can do to mitigate this potential harm.

What is a trade secret?

A trade secret is a piece of information that a corporation can use to its competitive advantage, giving it an edge over other companies in the marketplace. For information to be granted trade secret status, it must meet three requirements:

  • It is neither generally known nor easily obtained by others through proper means.
  • It gains separate commercial value through its secrecy.
  • It is of recognized value to its owner, who makes reasonable efforts to maintain the secrecy of the information.

In determining whether or not something is a trade secret, a court will look to a number of different factors. These include whether the information is novel or unknown outside the owner's business, to what extent the information is known by those involved in the owner's business, the security measures in place to protect the information and the economic value of the information to the owner and to the competitors. The time and money spent developing the information, as well as the difficulty of legally obtaining or duplicating the information, is also considered.

How to protect trade secrets during litigation

There are a number of things a company can do to protect their trade secrets:

  • Maintain comprehensive and detailed notes and records that could serve as evidence of independent creation, should the trade secret's ownership ever come into question.
  • Request protective orders from the court so that information cannot be divulged outside of the context of the litigation.
  • Allow inspections of the documents at issue without allowing copies.

Litigation is a complicated process, and trade secret law is a nuanced area of practice. An experienced litigator can address the many issues raised by a trade secret lawsuit and protect your company's most valuable assets.